Cannabis plants growing at Vireo Health of New York's Tryon Technology Park and Incubator Center in Perth. Nov. 12, 2015 in Perth, NY. Medical marijuana production licenses were granted by the state earlier this year. (John Carl D'Annibale / Times Union) less

Cannabis plants growing at Vireo Health of New York's Tryon Technology Park and Incubator Center in Perth. Nov. 12, 2015 in Perth, NY. Medical marijuana production licenses were granted by the state earlier ... more

FILE - In this Nov. 12, 2015, file photo, assistant cultivator Emily Errico examines cannabis plants grown by Vireo Health of New York at Tryon Technology Park and Incubator Center in Perth, N.Y. New York is loosening restrictions in its nearly year-old medical marijuana law, but to the dismay of some pot advocates, there is no sign the state is in any hurry to join eight other states in embracing full legalization. (John Carl D'Annibale/The Albany Times Union via AP, File) ORG XMIT: NYALT203 less

FILE - In this Nov. 12, 2015, file photo, assistant cultivator Emily Errico examines cannabis plants grown by Vireo Health of New York at Tryon Technology Park and Incubator Center in Perth, N.Y. New York is ... more

Horticulturalist Chuck Schmitt carries a tray full of lady bugs purposely used to help grow marijuana plants in the greenhouse at the Vireo medical marijuana facility in the Tryon Technology Park on Wednesday, Sept. 21, 2016, in Johnstown, N.Y. (Lori Van Buren / Times Union archive) less

Horticulturalist Chuck Schmitt carries a tray full of lady bugs purposely used to help grow marijuana plants in the greenhouse at the Vireo medical marijuana facility in the Tryon Technology Park on Wednesday, ... more

Chief cultivator Chuck Schmitt examines a plant during the first harvest of cannabis plants by Vireo Health of New York has begun at Tryon Technology Park and Incubator Center Thursday Nov. 12, 2015 in Perth, NY. Medical marijuana production licenses were granted by the state earlier this year. (John Carl D'Annibale / Times Union) less

Chief cultivator Chuck Schmitt examines a plant during the first harvest of cannabis plants by Vireo Health of New York has begun at Tryon Technology Park and Incubator Center Thursday Nov. 12, 2015 in Perth, ... more

A view of some of the medical marijuana products that will be for sale at the Vireo Health of New York Albany medical marijuana dispensary, seen here on Sunday, Nov. 6, 2016, in Albany, N.Y. (Paul Buckowski / Times Union) less

A view of some of the medical marijuana products that will be for sale at the Vireo Health of New York Albany medical marijuana dispensary, seen here on Sunday, Nov. 6, 2016, in Albany, N.Y. (Paul Buckowski / ... more

ALBANY — Attorneys argued for two hours on Tuesday in Albany County Supreme Court over whether the state can license five new medical marijuana producers, doubling the supply side of New York's nascent market.

But a judge did not immediately issue decisions on a request to dismiss a lawsuit challenging that authority or a request to stop the state from taking action.

The New York Medical Cannabis Industry Association, on behalf of four of the five current companies, sued the state in April, charging that expanding the number of "registered organizations" to 10 would kill an industry that has struggled to thrive with just under 30,000 patients as of Tuesday. Yet last month, the state licensed five new companies anyway.

Jennifer Harvey, the industry association's attorney, argued on Tuesday that the preliminary injunction the association sought in April to bar the state from licensing more companies is not moot even though the state Department of Health went ahead and licensed the new companies.

Harvey's arguments that the state unlawfully added new companies focused on language part of the Compassionate Care Act, which set up the medical marijuana program, that says the commissioner of health "shall register no more than five registered organizations that manufacture medical marijuana." Yet it also states that "the commission (sic) may register additional registered organizations."

Harvey said that while more non-manufacturing registered organizations, such as dispensaries, might be allowed, more manufacturers would not be.

Assistant Attorney General Harris Dague contended that the law grants the commissioner the authority to register five companies initially, to evaluate whether they fit the needs of the patient base and to register additional companies as needed. He said that the law gives the commissioner the ability to add new serious illnesses that can be treated by medical marijuana, which Commissioner Howard Zucker has done with the addition of chronic pain as a qualifying condition.

In addition to adding chronic pain to expand patient access, DOH has allowed home delivery, released a list of doctors who are signed up to certify patients and moved to allow production and sale of medical marijuana lotions, patches, chewable tablets and lozenges, expanding the roster of non-smokeable forms the drug comes in.

Still, the current five companies, which have operated at losses, argue that demand does not meet supply, and that by adding new companies, competition will irreparably harm the industry.

Exacerbating the issue is the small pool of repeat buyers of medical marijuana products. State data show that roughly half of all patients are dispensed a product more than once. Reasons for that the discrepancy between the total patient count and the repeat buyers number include price, insurers who won't cover medical marijuana and even the death of some critically patients who make it to the market only once, if at all.

"That (patient) number is not increasing to the extent that seems to be urged," Harvey said. "There has been no allegation of a supply issue."

The five newly licensed companies have been allowed to join the case. On Tuesday, Brian Butler, an attorney for new registrant New York Canna, argued that the lawsuit should be dismissed because the economic harm the industry foresees is speculative.

"The statute is intended to provide necessary medical marijuana to certified patients," he said. "That's the purpose of this statute. It's not to prevent competition. It's not to create a monopoly for these five registered ROs."

Harvey argued that not only does the law have a cap on the number of medical marijuana manufacturers, legislative efforts to amend that piece of the law have failed.

"You can use emotionally charged words like monopoly or whatever you want to use, but there's a cap of five such (manufacturing) entities," she said.